Wednesday, June 16, 2010

I wrote yesterday in Pay no attention to the man behind the curtain about the case of Kuoa Fong Lee, the Hmong immigrant who was convicted of vehicular homicide, and who received an eight year sentence for an accident that probably wasn’t his fault, much less his crime.

A new defense expert has found that the throttle cable on Lee’s Toyota Camry was sticky and that it could well have caused the conditions in which Lee was unable to stop his car, even when he applied the brakes.

Lee says that is what happened; he’s maintained that all along. The Ramsey County attorney told the jury that Lee hit the accelerator instead of the brake, but that now appears impossible.

Ramsey County Attorney Susan Gaertner says that the new evidence “is not inconsistent with” Lee’s conviction. But of course it is, and it flies in the face of everything the prosecutors told the jury.

Instead of owning up to even the possibility that it convicted an innocent man, the Ramsey County Attorney’s office, and Susan Gaertner herself, have gone into the full defense mode.

I said in the previous post on the subject that I would describe the action of a truly legendary prosecutor when faced with new evidence that had the potential to embarrass the prosecutor’s office. That prosecutor is Robert Morgenthau, who has been either the U.S. Attorney or the D.A. for New York County for literally decades.

He retired recently, and there was an extensive retrospective of his career in the ABA Journal. Here’s an anecdote from the article:

Manhattan is sometimes as much cauldron as melting pot, and [Robert] Morgenthau’s office prosecuted criminal cases that churned in the city’s tabloids as well as in national headlines. In 1990 five black males under age 16 were convicted of raping and nearly killing a woman known as the “Central Park jogger.” But the final headlines in the case would have made Morgenthau’s mentor [Robert L. Patterson] proud—and perhaps would be too shameful for many other prosecutors.

After the teens had served between six and eight years each behind bars, another man confessed to the crime in 2002. DNA evidence bore out his claim. Amid calls to overturn the convictions, the New York Police Department dug in its heels, as did some current and former prosecutors in the DA’s office, including the one who had prosecuted the cases.

Morgenthau moved to have the convictions set aside. And they were.

“I think it was his finest hour,” says Barry Scheck, co-founder and director of the Innocence Project, which promotes the use of DNA evidence to reverse erroneous convictions. “Very few DAs would have done that, but he could with his stature, self-confidence, guts and commitment to principle. In that and other cases I’ve seen, I believe he has asked, ‘Is this the right thing to do?’ ” [italics are mine]

“[S]tature, self-confidence, guts and commitment to principle” are all elements that are glaringly absent here. There are differences in the cases, of course; no one claims that somebody else was driving Lee’s car.

But there are similarities, too. In both cases, a prosecutor is presented with a reality that is different than the one that the prosecutor’s office presented to a jury in obtaining a conviction. Robert Morgenthau takes one course; Susan Gaertner takes another.

Which one, do you think, is the better example of fidelity to the trust invested in a public prosecutor?

As Robert Morgenthau demonstrates, the job of the D.A. — the County Attorney — is not just to obtain and defend convictions. It is to see after the administration of justice. Justice can be an elusive principle, more difficult to obtain than simple convictions.

But it is the difference between a functionary like Susan Gaertner and the real thing like Robert Morgenthau.